Today in Supreme Court History: February 23, 1905

2/23/1905: Lochner v. New York argued.

Comments

[Ama Valde Intellectum]

A great case. Reminds of Biden's screeching under COVID :
He said "MY patience is wearing thin with the unvaccinated" Then within weeks he totally dropped it. And as it turns out he was completely wrong on all the major points !!!! Lochner basically said 'If you are an adult making a decision about your work life it is the government's business to say YEA or NAY to that, esp as if they really cared"

Do they teach Logic in Law School anymore? Do people realizze you can support the right/correct/moral outcome for the WRONG REASON ?

"The Court was wrong not because it checked the regulatory state, but because the decision rests on sheer judicial willfulness. Indeed, the reasoning in Lochner is the polar opposite of conservative constitutional reasoning, by which I mean reasoning based on the actual text, history, and structure of the Constitution and not judges' policy preferences."

[JoeFromtheBronx]

Happy David Bernstein Day!

https://www.amazon.com/exec/obidos/ASIN/022600404X/reasonmagazinea-20/

Victoria Nourse was an Obama nominee whose appellate court nomination was effectually filibustered. Prof. Bernstein signed a letter opposing the move. She wrote an interesting article about Lochner:

https://scholarship.law.georgetown.edu/facpub/999/

My overall view is that there is a "liberty" to contract* but Justice Harlan's dissent is correct regarding the validity of the regulation. Harlan also supported the incorporation of the Bill of Rights. I favor his approach over Holmes' more famous dissent.

===

* To quote the old Republican Party slogan which ultimately led to the Fourteenth Amendment, "Free Soil, Free Labor, Free Men."

[Brett Bellmore]

The other liberties aren't a whole lot of good to you if the government can economically regulate you into poverty, so that you can't afford to exercise them. I don't think there's a whole lot of question about liberty to contract, economic liberty in general, being a traditional American liberty. But it got in the way of FDR's central planning ambitions, and so that liberty had to die.

Now, of course, the legal community just assumes economic central planning is inevitable, and so MUST be constitutional, and treats economic liberties like a swear word.

[Malika the Maiz]

There’s a reason the classical liberal model was given up on by nation after nation, it’s that in addition to it eliding inequality in bargaining power it also during the Great Depression didn’t seem to produce the goods it promised: economic prosperity.

[Michael P]

"didn't seem" does a lot of work there. It's more that economic liberties got in the way of (alternately) communism or fascism as variants of totalitarianism. And they still do.

[Malika the Maiz]

Michael: “My girlfriend left me right when I was giving her so much!”

[Stupid Government Tricks]

Malika: The free market didn't keep working when the government messed with it, so the government needs to mess with it more.

[Malika the Maiz]

The government messing largely came after the market failures.

[John F. Carr]

Don't You Want Me (1981 single by Human League)

[Brett Bellmore]

"There’s a reason the classical liberal model was given up on by nation after nation,"

There are reasons for everything that's not random, doesn't mean they're good reasons...

In this case, the reason is that leaving people alone to make their own choices is no fun if you're a ruler. Centralized economic planning was a serious fad in the early 20th century, before it got a bad name from the pathbreakers in it turning out to be genocidal totalitarians.

But it was so addictive to the ruling class that they couldn't bring themselves to give it up. The more power you have to mess with people, the more of your country's wealth flows your way... Who wants to step off the gravy train, even if it's the right thing to do?

[Malika the Maiz]

So the ruling class just forced these changes on the majorities of market loving people in every country around the world?

Cool story!

[Brett Bellmore]

No, they got a lot of people to go along with it.

Hitler got a lot of people to go along with what he wanted in Germany. Means it was a good idea, or he was trying to help them?

We didn't lose our economic liberties for our own sake, that was the excuse. We lost them for our rulers' sakes.

[bernard11]

1. We have not lost our economic liberties. You can't send your 10-year-old to wok in a factory. Too fucking bad. And if you could and did you would robbing him of his liberties.
2. Regulations are not for "our rulers' sakes."
3. Economic actors are not independent actors. Their behavior affects and is affected by the behavior of others.
4. The fanatically free market simply produces some extremely poor outcomes in some areas. We know this both from logic and experience.

You might want to study the Great Depression a little more deeply, and I don't mean reread Amity Shlaes.

[Michael P]

Malika: "market failure" *wahhh*
Reality: https://x.com/DouglasCarswell/status/1893374276327137367

[bernard11]

the reason is that leaving people alone to make their own choices is no fun if you're a ruler.

Oh stop. Conflating things like the FDIC and the SEC with Soviet Communism is the sign of a brainless, ill-educated fanatic.

Bank runs and securities fraud are bad things. So is polluted air and poisoned water.

[Ama Valde Intellectum]

That is an argument for Federalism and Subsidiarity. Take all that power and put it at the appropriate level. Biden telling several states that they have an unfunded liability to proved unisex bathrooms comes to mind

[Krayt]

This is also cherry picking endpoints. The long term trend is always better and better. But only with economic freedom. As soon as government starts rationing and controlling, the free people are no longer able to rise to the challenge of wants and needs of others, and provide it.

These inevitable trends, with econonic freedom, are long term. Simon had famous bets with gloom and doom resource shortage talking heads in the 1970s. But even he admitted he was uncomfortable with a 10 year granularity.

The long term trend is decreasing prices after inflation, but due to the peaks and valleys on price time graphs, ill-timed endpoints of that 10 years could "disprove" it.

Nevermind. It worked out fine.

If you want to propose extra spending in down times, well, ok, politicians must appear to be doing something, but command and control is not actually part of that.

[Malika the Maiz]

I’m not proposing anything other than this: we had a relatively classical liberal system and then we had the Great Depression and this led gibs of people to doubt that system.

To take a riff on my reply to Michael, a girlfriend leaving you can choose a worse boyfriend but their was probably something you were doing or not doing that played a part in her leaving. Classical liberalism fundamentalists are like the boyfriend who just thinks there was something wrong with her or she was just duped.

[Malika the Maiz]

To be clear command and control often turns out to be the possessive, abusive boyfriend that’s sometimes moved onto. Best to avoid either extreme.

[Ama Valde Intellectum]

Yet in practice many know this and still do it --- maybe even you

Man pleads guilty to tricking pregnant girlfriend into taking abortion pill

Man convicted of killing unborn baby by poisoning his girlfriend with abortion pills

Man Who Drugged Wife’s Drinks to Cause Abortion Gets 180 Days in Jail

IT IS THE LAW and REASON just ignores it
"it is still unlawful to force a girl or woman to have an abortion in every state, whether abortion is legal or illegal in that state. No person may force, coerce, or pressure you into having an abortion. An abortion that is forced or coerced can generate penalties and/or criminal prosecution for persons involved.

Fetal homicide laws prohibit any third party (including relatives) from murdering a baby in the womb when the mother of that child wants the baby to live. Any third party (including a relative) who causes the baby to be killed against the will of his/her mother may be guilty of fetal homicide and courts have upheld these laws. (See Lawrence v. State, 240 S.W.3d 912, (Tex Crim. App. 2007).

A person may also be prosecuted under the Federal Unborn Victims of Violence Act. A government official (i.e. police officer, teacher, school counselor, social worker) who coerces “a minor to abort a child violates the minor’s constitutionally protected freedom to choose whether to abort or bear her child.” Arnold v. Bd. of Ed. of Escambia County, Alabama, 880 F. 2d 305 (11th. Cir. 1989)."

[Michael P]

Gobs of people often draw bad conclusions. Did countries with stronger government controls suffer less in the 1929 market crash or the Great Depression? FDR is well-known for prolonging the Great Depression through excessive government intervention. WW2 started after his interventions; would popular opinion make him responsible for that?

Your logic is characteristically awful. Is your fixation with bad analogies to significant others because you just got dumped or something?

[bernard11]

FDR is well-known for prolonging the Great Depression through excessive government intervention. WW2 started after his interventions;

Bullshit.

The main thing he did wrong was give in to the budget balancers in 1937, thereby starting some new trouble. In fact, real GDP started to recover in 1933. Also, he might have gotten us off the gold standard a little more quickly.

[Michael P]

And he supported cartels so that producers could increase their rents. And his bankers radically increased reserve requirements for banks, cutting down money supply. And he intentionally reduced agricultural production.

The US's economic performance in the 1930s was below that of most of our peers.

[Dr. Ed 2]

Malka, the Great Depression wasn't the first one -- they used to call them "Panics" and "Depression" was coined as a less scary word.

But the "Panics" didn't last a decade....

[bernard11]

Ed,

The GDP downturn that started in 1873 was longer than the one that started in 1930.

[ReaderY]

Nothing in the Constitution guarantees pure private enterprise. So long as the government pays just compensation, it could nationalize major industries and run a quasi-socialist system if it wants.

Pure market capitalism is no more inherent in the constitution than abortion.

What’s the best economic model is largely up to the political process.

[Dan Schiavetta]

Johnson v. California, 543 U.S. 499 (decided February 23, 2005): unwritten state policy of segregating new double-celled prisoners by race must be examined under “strict scrutiny” (case then settled; prisons are taking a go-slow approach to in-cell integration, I think understandably)

Illinois v. Fisher, 540 U.S. 544 (decided February 23, 2004): prosecution for cocaine possession can proceed despite police disposal of cocaine seized; defendant had been on the lam for 10 years, disposal was per normal procedures, and presence of cocaine at trial was unlikely to be exculpatory (to state the obvious)

Walker v. Martin, 562 U.S. 307 (decided February 23, 2011): Court cannot review state’s dismissal of habeas proceeding; failure to meet state statute of limitations was “independent state ground” for dismissal

Williamson v. Mazda Motor of America, Inc., 562 U.S. 323 (decided February 23, 2011): federal regulation allowing option of simple lap belt (I miss those) vs. lap-and-shoulder belt did not preempt state law claim that fatal accident would have been prevented had manufacturer installed lap-and-shoulder belt

Packer Corp. v. Utah, 285 U.S. 105 (decided February 23, 1932): upholds against discrimination, Dormant Commerce Clause and Due Process arguments Utah statute prohibiting tobacco advertising on billboards and placards but not in newspapers or magazines (the public can’t avoid seeing billboards, but to see an ad in a newspaper you have to buy it)

[Krayt]

Williamson v. Mazda Motor of America, Inc., 562 U.S. 323 (decided February 23, 2011): federal regulation allowing option of simple lap belt (I miss those) vs. lap-and-shoulder belt did not preempt state law claim that fatal accident would have been prevented had manufacturer installed lap-and-shoulder belt

Ahhh the good old days, saving two bucks on increased safety, when nobody's really looking for it on the consumer level.

Nowadays, fully 50% of a car's development cost is software, all driven by the need to push the latest into the vehicle, or be seen by those same consumers as left behind.

I bought a new 2023. It had bluetooth for audio and calls, god help you if it didn't, but it did not have a USB C connector, just old USB through a cigarette lighter jack. I had to buy my own adapter. In a 2023 vehicle.

This was the last year for that particular model. It was a good 30 year run.

[A Japanese Student]

How would the tobacco case be analyzed under 1A today? I assume the standard is intermediate scrutiny (under Austin v. Reagan National).

[Dan Schiavetta]

Interesting question. The Austin case didn't involve content at all, merely the right to digitize billboards off-site as well as on-site. Both involved commercial speech which is intermediate.

[ReaderY]

I suspect it was basically overruled by Posadas de Puorto Rico v. Tourism Co.

[A Japanese Student]

Fraud, Receipt of Stolen Property Case (Second Petty Bench, decided February 23, 1955): Defendant appealed conviction and reappointed trial counsel as attorney, but the attorney withdrew. Defendant, despite being notified of the deadline for filing briefs, never submitted one, hired another attorney, or sought appointment of public defender. Court upholds dismissal of appeal because the defendant was responsible for not exercising the right to counsel. (cf. Anders v. California, 386 U.S. 738 (1967)) (I believe fraud was a mandatory-representation offense (having maximum sentence above 3 years), which requires judges to appoint counsel sua sponte; to the extent that is the case, this case is abrogated by May 9, 1958 decision that held this rule to also apply to appellate proceedings, and overruled by September 26, 1972 decision that bars dismissal of appeal before appointment)

Public Offices Election Act Case (Third Petty Bench, decided February 23, 1960): Person is not a "candidate for public office" before officially filing for candidacy (should have been obvious from the Act's text, which uses both "candidate for public office" and "person seeking candidacy for public office") (in town assembly elections like this case, the filing day is exactly 5 days before the election day; POEA prohibits election campaigns outside this period - I suppose it's unimaginable for Americans)

Land Rezoning Project Plan Case (Grand Bench, decided February 23, 1966): Also known as the "blueprint decision"; adoption of land rezoning project plan (redrawing complex land borders using eminent domain to expand roads and simplify the shapes of tracts of land) is not subject to judicial review because the plan itself is a "blueprint" that does not affect the rights of parties yet (overruled by September 10, 2008 decision)

[John F. Carr]

American election officials often claim to need months to prepare ballots. For major elections there is a legal requirement to get paper ballots to soldiers serving overseas. For my town election a month seems to be sufficient.

[A Japanese Student]

Yes, if Japan started printing names on the ballots (instead of blank ballots and write-in only) the current system is obviously unworkable. Filing deadline is 5pm, and early voting starts 7am the next day in some places.

Judicial retention elections, on the other hand, use printed ballots. The Government argued that difficulties in preparing the ballot would justify depriving overseas voters' constitutional right to disapprove justices. They lost because that difficulty would only arise when using printed ballots.

[Brett Bellmore]

Printed ballots were adopted here a couple decades after the Civil war, supposedly as a convenience for voters. But it wasn't long after that incumbent politicians realized that they could largely keep the voters from voting them out of office by making it hard for challengers to get on the ballot.

Recently, more and more states have even started removing the option to write in vote, so as to deny voters any way of working around that restriction on who they could vote for.

[Dr. Ed 2]

The other big difference between the US and Japan is that we have a character alphabet while they have a conceptual one, which I presume extends to names. And they are a mono-racial culture so all names are Japanese, while we have last names spelled however they were in the lands people came from.

The problem with write-in is getting the names spelled right, and in fairness when printed ballots were adopted, do you use the American, British, or Irish/Gaelic spelling of the persons name?

Remember the fights over hanging chads in the Florida 2000 election? Now try that with handwritten names in either lead pencil or quill pen.

[Dan Schiavetta]

The best way -- and I was an election inspection during those years -- is the old lever machine with the curtain. No paper fuss. Secret ballot (unlike now). Clear who was being voted for.

[Michael P]

What is a "conceptual" alphabet? Is there some rule that a write-in ballot cannot use hiragana to write the candidate's name?

[A Japanese Student]

No; the name can be written in both hiragana and kanji (Chinese characters). Candidates actually prefer hiragana because it's easier to remember.

[David Nieporent]

Recently, more and more states have even started removing the option to write in vote, so as to deny voters any way of working around that restriction on who they could vote for.

Why do you make up this completely fake narrative? No, not "recently" or at any other time have "more and more states" "started removing the option to write in." This is just utter fiction. Only 6 states bar write in votes, and (in a quick spot check) none of those did so "recently."

[John F. Carr]

In Massachusetts write-in candidates can distribute stickers to apply to the ballot. "John Doe / 123 Main Street, Podunk" Is that legal in Japan?

[A Japanese Student]

No; distribution of printed matter for the purpose of electioneering - punishable by 2 years in prison or 500,000 yen fine. (POEA §142, §243). If done outside the campaign period, it would also violate the campaign-period restriction, punishable by 1 year in prison or 300,000 yen fine. (§129, §239)

[Dr. Ed 2]

Massachusetts requires you to register to vote 10 days before the election -- you can't change your party affiliation after that.

For just how unconstitutional the Japanese law would be, see both Citizens United and Buckley v. Valero -- the latter was the ability of a man (William F. Buckley's brother) to spend however much of his own money on his Senate campaign as he desired.

[The Margrave of Azilia]

"(in town assembly elections like this case, the filing day is exactly 5 days before the election day; POEA prohibits election campaigns outside this period - I suppose it's unimaginable for Americans)"

To be clear, there are ways to campaign without campaigning. Elected officials can hold ribbon-cutting ceremonies at new businesses, or publish official reports giving their point of view. And of course there's the media, which can communicate at all times of the year about whether the government should continue in office or get replaced.

Such things happen in the USA; I'm not familiar with whether there's anything analogous in Japan.

[Dr. Ed 2]

That is what the Citizens United case was about.

[bernard11]

Huh?

[David Nieporent]

That is what the Citizens United case was about.

That is not what the Citizens United case was about in any way, shape, or form. It had nothing of any sort to do with restrictions on politicians campaigning.

[A Japanese Student]

Technically speaking, POEA applies to everyone (including ordinary citizens). There is another law regulating political finance (for electioneering or otherwise); corporations and unions can only donate to parties, not independent-expenditure entities or candidates. Not sure if this would violate Citizens United. (The maximum-amount restriction, however, probably will.)

[Dr. Ed 2]

A couple of states require presidential candidates to get on the ballot a year earlier. See https://ballotpedia.org/State_and_federal_candidate_filing_deadlines_for_2024